Tier 3 – VCAT - Appointed Restrictive Practices Substitute Decision-maker
Under section 9 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic), the Victorian Civil and Administrative Tribunal (VCAT) may appoint someone to be a Restrictive Practices Substitute Decision-maker.
A VCAT appointed Restrictive Practices Substitute Decision-maker should only be sought if:
- The appointee must be someone known to the aged care resident and has an ongoing personal or professional relationship with them.
- there is a dispute about a Restrictive Practices Nominee or Temporary Restrictive Practices Substitute Decision-makers that requires VCAT’s intervention.
The prospective appointee must apply to (not the provider) and satisfy VCAT that they meet the requirements to be appointed as the substitute decision-maker.
Who can be a VCAT - appointed Restrictive Practices Substitute Decision-maker?
A VCAT appointed Restrictive Practices Substitute Decision-maker must be an adult who has an ongoing personal or professional relationship with the aged care resident and is reasonably available, willing and able to act as the restrictive practices substitute decision-maker.
For example, a prospective VCAT-appointee might be the aged care resident’s:
- extended family member,
- close personal friend,
- former carer,
- general practitioner who is not employed by the aged care facility,
- allied health professional,
- lawyer or accountant acting on behalf of the aged care resident, or a trustee company or director of a trust in which the aged care resident is a beneficiary, or
- anyone else considered to have an ongoing personal or professional relationship with the aged care resident.
Who cannot be a VCAT appointed Restrictive Practices Substitute Decision-maker?
The appointee cannot be:
- an employee or agent of the aged care resident’s aged care provider,
- a person who was, is or will be involved in the preparation of the aged care resident’s behaviour support plan,
- a person who is subject to a current family violence intervention order where the aged care resident is the affected family member, or
- a person who has a conviction, other than a spent conviction, for committing a crime against the aged care resident.
What is the meaning of 'available, willing and able'?
To be appointed by VCAT, the applicant must be ‘reasonably available, willing and able’ to act as a restrictive practices substitute decision-maker on behalf of the aged care resident.
Therefore, they must be ‘willing’ to make a restrictive practices decision, i.e., whether to consent or to not consent to the use of restrictive practices. If a decision-maker does not wish to make a decision one way or the other, then they are not ‘willing’.
For a decision-maker to be ‘able’ to make a decision, they must have decision-making capacity.
To be ‘available’, the person must be reasonably able to be identified and contacted.
How long are appointees in place for?
A VCAT- appointment may be indefinite or time limited. An appointment by VCAT can also be amended or revoked by a subsequent VCAT decision.
A VCAT- appointee will be taken to be the Restrictive Practices Substitute Decision-maker until either a Restrictive Practices Substitute Nominee is subsequently appointed by the aged care resident, a term specified in the VCAT order ends, or VCAT makes an order revoking the appointment.
VCAT may only appoint someone under section 9 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic) if a restrictive practices nominee or Temporary Restrictive Practices Substitute Decision-maker has not been appointed.
How will VCAT ensure urgent matters are addressed in a timely manner?
VCAT is provided flexibility and discretion in how it manages cases regarding substitute decision-making and the use of restrictive practices. VCAT will be able to:
- prioritise emergency or time-critical cases
- exercise discretion in how it will convene a Tribunal; and
- make time-limited orders that can address immediate issues and deal with more complex cases (but less time critical) cases at a later date.
If there is no VCAT appointee, aged care providers should progress to Tier 4 – VCAT as a Restrictive Practices Substitute Decision-maker of last resort.
For more information about Tier 3 of the hierarchy of decision-makers, please see the below factsheet:
Tier 4 - VCAT as a Restrictive Practices Substitute Decision-maker of last resort
As a last resort, VCAT can act as a Restrictive Practices Substitute Decision-maker and consent to the use of a restrictive practice.
For VCAT to make such an order, an application must be made by the aged care provider. This application must include sufficient information:
- to satisfy VCAT that there are no other potential Restrictive Practices Substitute Decision-makers (nominees, or possible temporary or VCAT appointed decision-makers); and
- the proposed use of restrictive practices is appropriate and consistent with requirements of Commonwealth legislation , including that the restrictive practice is used only as a last resort to prevent harm to the aged care resident themselves or other residents.
How does a provider apply to VCAT to be the decision-maker?
Aged care providers can apply to VCAT if they require someone to give informed consent for the proposed use of a restrictive practice as documented in an aged care resident’s Behaviour Support Plan.
Aged care providers must have a decision that needs to be made at the time of the application. This means providers cannot pre-emptively apply to VCAT for a future decision.
VCAT is the decision-maker of last resort and can only consent to the use of a restrictive practice on an aged care resident if there no other Restrictive Practices Substitute Decision-makers reasonably available, willing and able to act. Aged care providers cannot apply to VCAT because:
- a Restrictive Practices Substitute Decision-maker has withheld or withdrawn consent, or
- they do not want to work through the hierarchy to find an appropriate Restrictive Practices Substitute Decision-maker.
Providers can apply to VCAT through the Victorian Civil and Administrative Tribunal website
How will VCAT consider applications?
All applications regarding the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic) will be considered by VCAT’s Guardianship List.
When considering an application for VCAT to provide consent, VCAT must have regard to any statement of preferences or values of the aged care resident. This may be those stated in a valid nomination or otherwise expressed by the aged care resident or inferred from their life.
VCAT will manage its cases with careful consideration of urgency and complexity. When considering matters related to acting as the Restrictive Practices Substitute Decision-maker of last resort, VCAT can:
- prioritise emergency or time-critical cases;
- exercise discretion in how it will convene a tribunal; and
- make time-limited orders that can address immediate issues and deal with more complex cases at a later date.
What powers does VCAT have?
On an aged care provider’s application, VCAT has the power to consent, or not to consent, to the use of restrictive practices as a Restrictive Practices Substitute Decision-maker of last resort.
In giving consent to the use of restrictive practices, VCAT may provide for this consent to only be in place for a specific period. VCAT can also give consent that is subject to any conditions it deems appropriate.
VCAT can only consent to a restrictive practice if satisfied that there is no other Restrictive Practices Substitute Decision-maker and the use of the restrictive practice is appropriate.
For more information about Tier 4 of the hierarchy of decision-makers, please see the following factsheet:
Making applications to VCAT
VCAT appointees
Eligible adults can apply to VCAT to be appointed as a Restrictive Practices Substitute Decision-maker if there is no nominee or temporary decision-makers available. See Tier 3 of the hierarchy VCAT - Appointed Restrictive Practices Substitute Decision-maker.
Aged care providers can apply to VCAT if:
- they require someone to provide informed consent for a proposed use of a restrictive practice
- there is a decision that needs to be made at the time of application. This means providers cannot pre-emptively apply to VCAT for a future decision.
- there is no other Restrictive Practices Substitute Decision-maker reasonably available.
See Tier 4 of the hierarchy - VCAT as Restrictive Practices Substitute Decision-maker of last resort.
Disputes
VCAT has jurisdiction to intervene around disputes and make orders concerning the appointment of Restrictive Practices Substitute Decision-makers under this Act.
Prior to making an application to VCAT, all attempts should be made to resolve the issue between the concerned parties.
Applications to VCAT related to the Act will be considered within the Guardianship List.
VCAT is not able to intervene on any issues related to:
- the use of restrictive practices, including their clinical appropriateness
- how a Restrictive Practices Substitute Decision-maker makes a decision, or to intervene if an aged care provider does not agree with that decision.
Reviewed 26 June 2025